Is Husband's incapacity to work or to provide money for home a Cruelty?

Section 10 (l) (b) of the Hindu Marriage Act, 955, provides that either party to a marriage, whether solemnised before or after the commencement of the Act, may present a petition to the District Court praying for a decree of judicial separation on the ground that the other party has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party.  The law on the interpretation of the word 'cruelty' is gathered from decided cases and Courts in India have mostly accepted and adapted to conditions in India the principles underlying the judge made law, on the subject, in England. The accepted legal meaning in England as also in India of the expression 'cruelty' has been the conduct of such a character as to have caused danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such danger : Vide Russell v. Russell, (1897) A. C. 395.  The legal conception of 'cruelty' comprise two distinct elements—firstly, the ill-treatment complained of, and, secondly, the resultant danger or apprehension thereof. The language of clause (b) of sub-section (l) of section 10 of the Hindu Marriage Act, 1955, is comprehensive enough to include cases of physical as also mental Cruelty and cases where both the elements are present. Where physical violence is proved, the test laid down in the section cannot present any particular difficulty.  The cases of mental cruelty deserve serious thought. It was formerly viewed that actual physical harm or reasonable apprehension thereof was the prime ingredient of the matrimonial offence. The earlier cages of cruelty dealt in the main with acts of physical violence and were little concerned with motive or intention.  In Dysart v. Dysart, (1844) 1 Rob. Ecel. at page 116 Dr. Luchington said :  "It is for me to consider the conduct itself and its probable consequences; the motive and causes cannot hold the hand of the Court unless the wife be to blame which is a wholly different consideration."  The above doctrine now stands repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. Conception of legal cruelty undergoes changes according to the changes and advancement in social concepts and standard of living. Cruelty by words, by talk, or by conduct other than violence, may be cruelty none-the-less and possibly may be more dastardly than the cruelty of blows. Kelly v. Kelly, (1861-73) All. E. R. 297, is the leading case in England, which propounded that if force, whether physical or moral, is systematically exerted against a wife with the view of bending her to the husband's authority in such a manner, to such a degree, and during such length of time, as to break down her health and render a serious malady imminent, it is legal cruelty which entitles the wife to a judicial separation. Abuse, harsh language and conduct of that kind may well be cruelty provided it causes either injury to health or reasonable apprehension thereof. Karminski, J. said in (1954) 3 All. E. R. 159, Eastland v. Eastland, at page 162 :  "Since Kelly v. Kelly there can be no doubt that this Court can find cruelty notwith. standing the complete absence of any blow or act of violence. Nagging will suffice, if persistent."  Failure on the part of the husband to give to the wife sufficient money for household and other expenses and refusal to pay for the goods ordered on the credit will not according to the decision in Eastland v. Eastland (Quoted supra) amount to cruelty. In that case the wife petitioned for divorce on the ground of her husband's cruelty alleging that he treated her with meanness over money matters and had consistently refused to make her any or any sufficient allowance for household necessities or for other purposes; that he had mismanaged his financial affairs and run into debt, leaving her to deal with his creditors; that he had refused to make any allowance for food or other purposes and had told her to order goods on credit but had refused to pay for the goods until the creditors pressed for payment, well knowing that she suffered humiliation and distress by reason thereof...... The Probate, Divorce and Admiralty Court held that the husband was not shown to have treated the wife with cruelty, as his conduct, though deplorable, was not directed against or aimed at the wife. Again, in Kaslefsky v. Kaslefsky (1950) 2 All E R 398, Denning L. J. held that:  "Gross neglect or chronic discord is not yet a ground for divorce......If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. That is an easy path to tread, especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperilled."  The above dictum of Karminski J. and Lord Denning L. J. has not been approved in the majority decision of the House of Lords in Gollins v. Gollins (1963) 2 All E R 966. In Golliris case the parties were married in 1946 and there were two daughters of the marriage, born in 1947 and 1949. The husband ran into debt, sold his farm and bought a house on mortgage, which he transferred, subject to the mortgage, to his wife, who had given or lent him considerable sums to maintain the family. The wife ran this house as a guest house. The husband did little or nothing to help her. He could have obtained paid employment but did not. He was incorrigibly and inexcusably lazy, but the evidence did not show any wish on his part to harm the wife, nor was he aggressively unkind to her. Creditors of the husband tried to make the wife pay, and she did pay some of his debts. His refusal to try to help her or to earn money worried her and made her ill. On her complaint Ludlow Justices made a matrimonial order on the ground of her husband's persistent cruelty. On April 5, 1962 the Divisional Court of the Probate, Divorce and Admiralty, (1962) 2 All E R 366, held that the husband's conduct did not amount to cruelty. On October 26, 1962, the Court of Appeal reversed the decision of the Divisional Court: (1962) 3 All E R 897. The husband appealed to the House of Lords, which, in a majority decision, held that as the husband did no work, provided no money, had debts and pressing creditors and left the wife to support the household, whereby her health deteriorated, the wife had made out a case of persistent cruelty and made good her charge of cruel treatment.  However useful fictions may have been in the past, they seem to be both unnecessary and confusing in the realm of cruelty. So, now, the settled law on the subject is that the husband's desire to keep the wife or lack of intention to drive her out is irrelevant. Section 10 (i) (b) of the Hindu Marriage Act, 1955, says nothing about physical or intentional cruelty. If without just cause or excuse the husband or the wife persists in doing things which he or she will probably not tolerate, and which no ordinary person will tolerate, it will amount to cruelty. If, for instance, the husband is lethargic does no work, parasitical, selfish or callous, provides no money for the household or refuses to undertake paid employment to meet household expenses, he, on the ground of cruelty, is likely to meet the same fate as Gollins did in England.

Author Name: Justice Lehar Singh Mehta